Burns v Gaynor [2018] NSWDC 358

Burns v Gaynor [2018] NSWDC 358

The first defendant’s application for summary dismissal as an abuse of process failed on each ground: factual disputes about motive and notice must be resolved at trial; the discontinuance of prior anti-discrimination proceedings was not improper as the court lacked jurisdiction; the alleged harm and scale of publication were not minor or trivial in the circumstances; and the question of liability for publication after notice is a factual dispute for trial. Therefore, the summary dismissal application was refused.

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Civil / Interlocutory Application for Summary Dismissal
Outcome
First defendant's Notice of Motion for summary dismissal dismissed; further procedural issues stood over; costs reserved.
Legal Topics
['abuse of Process' 'summary Dismissal' 'defamation' 'proportionality' 'imputations' 'court Resources']
['tort' 'defamation' 'civil Procedure'] ['abuse of Process' 'summary Dismissal' 'defamation' 'proportionality' 'imputations' 'court Resources']

Case Brief

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Procedural Posture

Civil / Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether the defamation proceedings are an abuse of process due to alleged improper purpose or as a substitute for anti-discrimination claims' 'Whether the proceedings should be dismissed on proportionality grounds due to extent of publication' 'Whether failure to give notice bars liability for publication by the first defendant']

Ratio Decidendi

The first defendant’s application for summary dismissal as an abuse of process failed on each ground: factual disputes about motive and notice must be resolved at trial; the discontinuance of prior anti-discrimination proceedings was not improper as the court lacked jurisdiction; the alleged harm and scale of publication were not minor or trivial in the circumstances; and the question of liability for publication after notice is a factual dispute for trial. Therefore, the summary dismissal application was refused.

Court Disposition

First defendant's Notice of Motion for summary dismissal dismissed; further procedural issues stood over; costs reserved.

Orders

  • ["First defendant's Notice of Motion dismissed." "Plaintiff's application for substituted service on the second defendant stood over to 6 December 2018." 'Any claim by the plaintiff for reasonable disbursements by way of a costs order is reserved.' 'Parties have liberty to bring in Short Minutes of order for a...